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Judgment
James, J.—This is an application, u/s 25, Provincial Small Cause Courts Act. The plaintiff was a cosharer landlord who instituted a suit for recovery of his share of the rent of the shop which he said had been settled with the defendant. The defendant had taken a usufructuary mortgage of the share of another cosharer of this shop; but he denied that he had ever taken settlement of the shop itself which was in occupation of one Dwarka Das Marwari. The Small Cause Court Judge found that the defendant actually had; taken settlement of the share, so that he was an intermediate landlord between the: proprietors of the estate and Dwarka Das Marwari, and he decreed the suit allowing damages as claimed by the plaintiff. It is argued on behalf of the defendant petitioner that the learned Small Cause Court Judge ought not on the evidence to have come to the conclusion that there had been settlement of the shop with the petitioner. When he was giving evidence, the petitioner stated that after he had taken the zerpeshgi of the share, he settled the shop with Dwarka Das Marwari which the learned Judge regarded as tantamount to an admission that the petitioner had obtained the control of all proprietary shares, in the shop.
Mr. Sarjoo Prasad objects that such interpretation ought not to be placed on this evidence of the petitioner; but he did say that he settled the shop with Dwarka Das Marwari on 9th June 1932 and his evidence on this point is open to interpretation in the manner in which the Small Cause Court Judge has interpreted it.
On the main story of the settlement with the petitioner, the learned Small Cause Court Judge relies on the evidence of Muhammad Shamsuzoha and Jamadar Singh who describe how the shop was settled with the petitioner at a monthly rental of seven, rupees. I do not consider that the finding of the learned Small Cause Court Judge on this point is manifestly wrong so as to make it possible to interfere with the finding in revision.
The Small Cause Court Judge has allowed to the plaintiff damages at 25 per cent probably on the analogy of suits for arrears of rent which are governed by the provisions of the Bihar Tenancy Act. This is a mere claim for money and the plaintiff is not entitled to damages or interest for the period before suit. The decree must there fore be modified.
The claim for damages will be disallowed; but the plaintiff will be allowed interest at 6 per cent, from the date of the institution of the suit until realization.
The plaintiff has partly succeeded and partly failed. He will be entitled to costs in proportion to his success in the Small Cause Court. Bach party may bear his own costs in this Court.